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R v McQuire

R v McQuire

Case [2003] QCA 523 28 November 2003

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SUPREME COURT OF QUEENSLAND

CITATION:

R v McQuire [2003] QCA 523

PARTIES:

R
v
McQUIRE, Kevin Andrew
(applicant)

FILE NO/S:

CA No 256 of 2003
DC No 9 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

Application for Reopening (criminal)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

28 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2003

JUDGES:

McPherson and Williams JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application to extend the time within which to re-open the sentence imposed on 10 August 1999 as varied by this court on 25 February 2000 is refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where applicant convicted on seven counts of misappropriation of property – where ordered to pay compensation of half the total amount misappropriated – where prosecution presented information about applicant’s financial position at sentencing – where this information was not directly disputed by applicant’s counsel – where accountants’ report put forward on appeal by applicant – whether it could be established that applicant was sentenced under a clear factual error of substance

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where application for reopening filed out of time – whether any satisfactory explanation for delay – whether extension of time should be granted

Penalties and Sentences Act 1992 (Qld), s 188

Crampton v The Queen (2000) 206 CLR 161, referred to
Hancock v Prison Commissioners [1960] 1 QB 117, referred to
R v Burton [2002] QCA 114; CA Nos 304, 306 and 348 of 2001, 22 March 2002, cited
R v Davis (1999) 109 A Crim R 314; [1999] QCA 486; CA No 267 of 1999, 24 November 1999, cited
R v Mackenzie [2002] 1 Qd R 410; [2000] QCA 324; CA No 353 of 1999, 20 October 2000, cited
R v McQuire & Porter; ex parte A-G (Qld) [1999] QCA 205; CA No 70 of 1999, 8 June 1999, cited
R v McQuire & Porter (2000) 110 A Crim R 348; [2000] QCA 40; CA Nos 280 and 308 of 1999, 25 February 2000, considered
R v Morrison [1999] 1 Qd R 397; [1998] QCA 162; CA No 391 of 1997, 26 June 1998, cited
R v Rasmussen; ex parte A-G (Qld) [2002] 1 Qd R 299; [2000] QCA 91; CA No 288 of 1999, 24 March 2000, followed
R v Sheehy [2003] QCA 420; CA No 381 of 2002, 26 September 2003, followed

COUNSEL:

A J Kimmins for the applicant
M J Copley for the respondent

SOLICITORS:

Jacobson Mahony for the applicant
Director of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McQuire

Details

AGLC: R v McQuire [2003] QCA 523
Case: [2003] QCA 523
Decision Date: 28 November 2003

CaseChat Overview and Summary

The matter of R v McQuire involved a criminal appeal where the applicant had been convicted on seven counts of misappropriation of property. Following the conviction, the applicant was ordered to pay compensation for half the total amount misappropriated. During sentencing, the prosecution presented information about the applicant's financial position, which was not directly contested by the applicant's counsel. In the appeal, the applicant attempted to introduce an accountant's report to challenge the compensation order, arguing that the sentencing was based on a factual error.

The court was tasked with determining whether the compensation order could be challenged on the basis of a clear factual error of substance, given the information presented during sentencing. The court had to assess the relevance and admissibility of the accountant's report, which was presented for the first time on appeal. Additionally, the court needed to decide whether the application to reopen the sentence, which was filed out of time, should be granted, considering the lack of a satisfactory explanation for the delay.

In its reasoning, the court held that the applicant had not established a clear factual error of substance in relation to the compensation order, as the information presented during sentencing was not directly disputed and the accountant's report was not admissible as it was presented for the first time on appeal. The court further found that the application to extend the time to reopen the sentence was not justified due to the lack of a satisfactory explanation for the delay. Consequently, the application to extend the time within which to reopen the sentence was refused.

Orders

Orders of the court

The application to extend the time within which to re-open the sentence imposed on 10 August 1999 as varied by this court on 25 February 2000 is refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

R v McQuire [2003] QCA 523

Most Recent Citation

R v Dobie [2004] QCA 140

Cases Citing This Decision

R v Rowe [2016] SASCFC 33
Citation 1 (Para 2)

…utions v Ty (No 2) (2009) 24 VR 705; [2009] VSCA 226, Director of Public Prosecutions (Vic) v Toulmin [2013] VSCA 145, R v McQuire [2004] 1 Qd R 685; [2003] QCA 523, Dreja v State of Western Australia [2012] WASCA 151.…
Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125
Citation 2

…1 Qd R 685; [2003] QCA 523, cited R v Mokoena [2009] 2 Qd R 351; [2009] QCA 036, cited R v Peters [1997] 1 VR 489, cited R v Robertson (2008) 185 A Crim R 441; [2008] QCA 164, cited R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 010, applied R v Shrestha (1991) 173 CLR 48; [1991] HCA 26, cited R v Sinclair…
R v Hussein & Hussein [2009] QCA 246
Citation 3

…)(c) Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, considered R v AP [2003] QCA 445, cited R v McQuire [2004] 1 Qd R 685; [2003] QCA 523, cited R v Nudd [2007] QCA 40, cited R v Senior [2005] QCA 21, cited R v Smith [1968] QWN 50, considered R v Smith (No 2) [1969] QWN 10, cited COUNSEL: The applicants ap…
R v Newman [2008] QCA 147
Citation 4 (Para 1)

…on parole instead of her parole eligibility date. [8](2007) 173 A Crim R 284; [2007] NSWCCA 237 at 294-5 [60], 298-9 [83]-[85]. [9][2004] 1 Qd R 685; [2003] QCA 523 at 688-9 [9]-[11] (McPherson JA).…
R v Dobie [2004] QCA 140
Citation 5

…Cth), s 19(1)(b) Penalties and Sentences Act 1992 (Qld), s 188(1) R v Abbott [2001] QSC 281; SC No 437 of 1999, 27 June 2001, disapproved R v McQuire [2003] QCA 523; [2004] 1 Qd R 685; applied R v Stephenson [2001] QCA 407; CA No 179 of 2001 and CA No 219 of 1993, 2 October 2001, cited COUNSEL: P E Smith for appl…

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Cases Cited

R v Burton [2002] QCA 114
Citation 1 (Para 1)

…that effect is opposed to what was said by Mackenzie J in R v Rasmussen, ex p Attorney-General [2002] 1 Qd R 299, 306, and by McMurdo P in R v Burton [2002] QCA 114, at p 4. It is, however, submitted for the applicant that in R v Rasmussen , the Court was concerned with the case of a sentence imposed in this Cour…
Re Ruddock; Ex parte Reyes [2000] HCA 66
Citation 2 (Para 1)

…the whole of the proceedings the applicant has been represented by counsel experienced in the criminal law. As Hayne J said in Crampton v The Queen (2000) 206 CLR 161 at 217; “Ordinarily, an accused must also bear the consequences of a decision not to take a point at trial.” To similar effect is a passage in my judgm…
R v MacKenzie [2000] QCA 324
Citation 3

…im R 314; [1999] QCA 486; CA No 267 of 1999, 24 November 1999, cited R v Mackenzie [2002] 1 Qd R 410; [2000] QCA 324; CA No 353 of 1999, 20 October 2000, cited R v McQuire & Porter; ex parte A-G (Qld) [1999] QCA 205; CA No 70 of 1999, 8 June 1999, cited R v McQuire & Porter (2000) 110 A Crim R 348; [2000] QCA 40;…
R v Rasmussen; ex parte [2000] QCA 91
Citation 4

…QCA 162; CA No 391 of 1997, 26 June 1998, cited R v Rasmussen; ex parte A-G (Qld) [2002] 1 Qd R 299; [2000] QCA 91; CA No 288 of 1999, 24 March 2000, followed R v Sheehy [2003] QCA 420; CA No 381 of 2002, 26 September 2003, followed COUNSEL: A J Kimmins for the applicant M J Copley for the respondent SOLICITORS…
R v McQuire & Porter (No 2) [2000] QCA 40
Citation 5

…d) [1999] QCA 205; CA No 70 of 1999, 8 June 1999, cited R v McQuire & Porter (2000) 110 A Crim R 348; [2000] QCA 40; CA Nos 280 and 308 of 1999, 25 February 2000, considered R v Morrison [1999] 1 Qd R 397; [1998] QCA 162; CA No 391 of 1997, 26 June 1998, cited R v Rasmussen; ex parte A-G (Qld) [2002] 1 Qd R 299;…
R v DC [1999] QCA 486
Citation 6

…02] QCA 114; CA Nos 304, 306 and 348 of 2001, 22 March 2002, cited R v Davis (1999) 109 A Crim R 314; [1999] QCA 486; CA No 267 of 1999, 24 November 1999, cited R v Mackenzie [2002] 1 Qd R 410; [2000] QCA 324; CA No 353 of 1999, 20 October 2000, cited R v McQuire & Porter; ex parte A-G (Qld) [1999] QCA 205; CA No…
R v McQuire and Porter; ex parte [1999] QCA 205
Citation 7 (Para 1)

…lodged an appeal which was heard on 14 May 1999. The judgment of the court (Pincus JA, Davies JA, and Chesterman J) was delivered on 8 June 1999; [1999] QCA 205. In its reasons the court concluded there was nothing to prevent the Attorney appealing, observed that there was “substance” in the submission on behalf…
R v Morrison [1998] QCA 162
Citation 8

…000] QCA 40; CA Nos 280 and 308 of 1999, 25 February 2000, considered R v Morrison [1999] 1 Qd R 397; [1998] QCA 162; CA No 391 of 1997, 26 June 1998, cited R v Rasmussen; ex parte A-G (Qld) [2002] 1 Qd R 299; [2000] QCA 91; CA No 288 of 1999, 24 March 2000, followed R v Sheehy [2003] QCA 420; CA No 381 of 2002,…
Crampton v The Queen [2000] HCA 6023
Citation 9 (Para 1)

…ary 2000. Throughout the whole of the proceedings the applicant has been represented by counsel experienced in the criminal law. As Hayne J said in Crampton v The Queen (2000) 206 CLR 161 at 217; “Ordinarily, an accused must also bear the consequences of a decision not to take a point at trial.” To similar effect is a passage…
Queensland, in considering similar legislation, it was held in R v Sheehy [2003] QCA 420
Citation 10 (Para 1)

…ccused must also bear the consequences of a decision not to take a point at trial.” To similar effect is a passage in my judgment in R v Sheehy [2003] QCA 420 with which Muir and Holmes JJ agreed; there I said at para [34]:…
[1960] 1 QB 117 [1960] 1 QB 117
Citation 11

…1992 (Qld), s 188 Crampton v The Queen (2000) 206 CLR 161, referred to Hancock v Prison Commissioners [1960] 1 QB 117, referred to R v Burton [2002] QCA 114; CA Nos 304, 306 and 348 of 2001, 22 March 2002, cited R v Davis (1999) 109 A Crim R 314; [1999] QCA 486; CA No 267 of 1999, 24 November 1999, cited R v Macke…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 188
2 mentions (from Para 1)
Supreme Court of Queensland Act 1991 (Qld)
1 mention (from Para 1)

CITATION:	R v McQuire [2003] QCA 523
PARTIES:	R v McQUIRE, Kevin Andrew (applicant)
FILE NO/S:	CA No 256 of 2003 DC No 9 of 1997
DIVISION:	Court of Appeal
PROCEEDING:	Application for Reopening (criminal)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	28 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2003
JUDGES:	McPherson and Williams JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application to extend the time within which to re-open the sentence imposed on 10 August 1999 as varied by this court on 25 February 2000 is refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where applicant convicted on seven counts of misappropriation of property – where ordered to pay compensation of half the total amount misappropriated – where prosecution presented information about applicant’s financial position at sentencing – where this information was not directly disputed by applicant’s counsel – where accountants’ report put forward on appeal by applicant – whether it could be established that applicant was sentenced under a clear factual error of substance CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where application for reopening filed out of time – whether any satisfactory explanation for delay – whether extension of time should be granted Penalties and Sentences Act 1992 (Qld), s 188 Crampton v The Queen (2000) 206 CLR 161, referred to Hancock v Prison Commissioners [1960] 1 QB 117, referred to R v Burton [2002] QCA 114; CA Nos 304, 306 and 348 of 2001, 22 March 2002, cited R v Davis (1999) 109 A Crim R 314; [1999] QCA 486; CA No 267 of 1999, 24 November 1999, cited R v Mackenzie [2002] 1 Qd R 410; [2000] QCA 324; CA No 353 of 1999, 20 October 2000, cited R v McQuire & Porter; ex parte A-G (Qld) [1999] QCA 205; CA No 70 of 1999, 8 June 1999, cited R v McQuire & Porter (2000) 110 A Crim R 348; [2000] QCA 40; CA Nos 280 and 308 of 1999, 25 February 2000, considered R v Morrison [1999] 1 Qd R 397; [1998] QCA 162; CA No 391 of 1997, 26 June 1998, cited R v Rasmussen; ex parte A-G (Qld) [2002] 1 Qd R 299; [2000] QCA 91; CA No 288 of 1999, 24 March 2000, followed R v Sheehy [2003] QCA 420; CA No 381 of 2002, 26 September 2003, followed
COUNSEL:	A J Kimmins for the applicant M J Copley for the respondent
SOLICITORS:	Jacobson Mahony for the applicant Director of…